R v Valentine

[2019] NSWDC 201

District Court

New South Wales

Medium Neutral Citation:	R v Valentine [2019] NSWDC 201
Hearing dates:	24 May 2019
Decision date:	24 May 2019
Jurisdiction:	Criminal
Before:	Noman SC DCJ
Decision:	Offender sentenced to an aggregate sentence of 22 years imprisonment with a non–parole period of 13 years.
Catchwords:	CRIME – historical sexual offences – indecent assault – buggery – rape – assault occasioning actual bodily harm – assault – indecent assault on a male   SENTENCING - victim under authority – penalties – imprisonment – special circumstances
Legislation Cited:	Crimes Act 1900 (NSW) ss 59, 61, 63, 76, 79, 81.
Cases Cited:	PH v R [2009] NSWCCA161
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Frank Valentine (Offender)
Representation:	Counsel: Donna Daleo (Crown) April Francis (Offender)
File Number(s):	2016 /168451
Publication restriction:	Non-publication order re identities of the complainants or the name of one of the institutions.

Judgment

Note:   Court order made in unrelated proceedings directing that there be no publication of the name of the institution for girls or derivatives, or any material that would identify that institution, in connection with allegations of mistreatment, assault or sexual assault.

1. The offender appeared for trial at Sydney District Court on 11 February 2019. The trial proceeded as a judge alone trial.

2. The offender was arraigned on an indictment containing 39 counts of both sexual and personal violence offences contrary to provisions in the Crimes Act concerning, initially, eight victims. Pleas of not guilty were entered to all counts.

Counts 25-34

3. During the trial, on 4 March 2019, the DPP directed that there be no further proceedings on counts 25 - 34 which all related to one complainant. The trial proceeded with 7 complainants.

Count 23

4. KV described an incident. I accepted that the incident described occurred but determined that there was a reasonable possibility that KV was mistaken in her nomination of the offender.

5. I found the offender not guilty of count 23, a count of indecent assault.

Counts 13-19

6. Count 17 was a verdict by direction at the close of the prosecution case on 12 March 2019. I also found the offender not guilty of counts 13 -16 and 18 -19.

7. The evidence concerned the period 1971 through to 1974 when the offender was employed by the Department of Welfare at [suppressed] and then the Daruk Boys Training School [“Daruk”]. He was employed at [suppressed] from 18 January 1971 until 16 July 1973 and then at Daruk from 17 July 1973 until 20 February 1975.

8. In providing reasons for my verdicts I detailed a number of findings. I do not propose to reiterate all of those findings. To the extent required, the reasons for sentence are informed by my reasons and findings on verdict.

9. The offender is to be sentenced for his offending upon 6 victims. The offences proven were committed within a 3 year period. The 21 offences were committed on 16 separate days. The evidence does not allow for precision on the sequencing of all the offences and as a matter of convenience I will follow the order of the counts on the indictment.

10. A number of features are common and influence the assessment of objective seriousness of individual offences. I propose to refer to these factors globally to avoid unnecessary repetition before addressing the individual offences.

Isolation

11. The offences were not committed in isolation. The offences upon each victim were committed as part of a pattern of offending on others and I am mindful that each victim was abused within the period of approximately 3 years.

Child

12. Each victim was a child with the ages of the victims being between 14 and 17. Child victims are vulnerable. The age of the victim is not an element for any of the offences. Age impacts on the penalty available for the offences upon VG. I accept that the younger the victim the more serious the offence.

Under authority

13. The offender was in a position of authority over each of the victims by virtue of his employment. Each victim was an inmate in a detention facility. Each victim was unable to remove themselves from the institution or the offender. This factor is available as an aggravating circumstance. Although under authority operates, the nature of the relationship that supports that circumstance of aggravation is relevant. Various relationships would fall under this umbrella. The offender held one of the most senior positions at each institution. Because of this position of authority over the inmates, the victims were vulnerable to his advances. It is part of the power imbalance and I will not double count the features informing this relationship.

Conditions

14. Witnesses described the austere conditions and discipline that were prevalent. The offender accepted that other officers at [suppressed] participated in a culture of violent discipline.

15. I have had regard to the nature of the act of violence, or the indecent or sexual offending involved in considering each offence.

Indecent assault offences

16. I am cognisant that at the time of offending acts of fellatio and digital penetration were offences of indecent assault. Within the range of sexual touching encompassed by this type of offence, acts of fellatio and digital penetration fall within the upper range. The type of sexual act is only one factor influencing an assessment of the seriousness of an individual offence.

Planning

17. The offences mostly reflect opportunistic offending in that the offender probably did not plan any particular occasion or particular sexual act until the opportunity presented itself. The offender took advantage of a victim when and how he pleased given the power imbalance. However, some offences do reflect some foresight given the repetition.

Consent

18. All of the acts were non-consensual. I acknowledge that the offences of indecent assault upon a male and buggery did not require proof of absence of consent.

Harm /Victim Impact Statement

19. It is important that sentences passed for serious sexual assault crimes committed on children, even older children, recognise the harm done to the victim of the crime. This has been a sentencing imperative. It is now a statutory requirement for specified offences. I had the opportunity to observe the victims, some of whom gave their evidence in the court room. The impact of such offending upon victims is well understood and accepted even without supportive evidence. It is difficult is isolate and attribute the harm occasioned by this offending in appreciation that each of the victims had other life experiences that could have contributed to subsequent difficulties. A number of the victims appeared emotionally vulnerable. I accept that each victim was without doubt adversely affected by the offences. Even after more than 40 years, the deleterious impact of discussing the events upon the victims was discernible during evidence. I do not accept though that it was of such degree as to be an aggravating feature, except in the cases of EK, LT and DW. I accept that they suffered substantial harm consequent from the offending.

20. The victims were silent about the offending at the time, and for some this silence continued for decades. Undoubtedly this aspect of not disclosing and not being able to source support exacerbated the trauma. Many feared they would not be believed if they did speak out.

21. Four of the victims prepared a victim impact statement.

22. VG has described her sense of no self-worth resultant from the offending. She resorted to alcohol and prescription drugs. She suffered depression and attempted suicide. VG indicated her absence of trust in others.

23. EK disclosed her depression and loss of the ability to trust others consequent on the offending. She has attempted suicide. She suffers mental anguish and continues to recall the physical pain.

24. LT has expressed the devastation occasioned to her from the offending. The offences were perpetrated upon her at a time she had not had any sexual experience. She has indicated how the offending impacted on her upon her release and the significant unresolved trust issues. LT has attempted suicide, resorted to drugs and alcohol and blamed herself for the offending. She has indicated how the consequences of the offending still remain with her.

25. DW commented on the offences engulfing his life and affecting him on a daily basis. He suffers depression and anxiety and is emotionally detached. The offending soured family relationships.

26. I take these statements into account consistent with the legislative constraints.

27. Sentence is not imposed to hold the offender accountable for the degree of pain and suffering occasioned from the offending. The level of harm expressed could rarely be reflected in sentence. I am guided and limited by sentencing principle. The provision of a victim impact statement does provide an opportunity for a victim to express to an offender the harm that they perceive occurred. That voice in the court proceedings is an important legislative provision.

The offences

28. Counts 1-3 relate to the victim VG. Each was an offence of indecent assault contrary to s76 Crimes Act. I found the offender guilty of all three counts.

29. VG was at [suppressed] from 10 May 1971 until 23 July 1971. She was aged 15 and pregnant at the time of admission and offending.

30. She described three occasions of the offender touching her. All occurred as she sat on a bench in the covered walkway outside the kitchen after having her morning milk.

31. Count 1:   She said the first time the offender approached her and said “you’re getting big” and he sat beside her. He put his right hand on her stomach and his left arm around her shoulder. He said “Shh, just be quiet”. His left arm entered the wrap of her dress and he squeezed her right breast.

32. Count 2:   The following day she was in the same place when the offender again commented on her “getting big”, he sat down and once again placed one hand on her stomach and another arm around her shoulder. He told her to be quiet and he cupped her right breast. It was for probably a minute or less than a minute.

33. Count 3:   The following day she was again seated on the bench. When she saw him coming she shuffled along the bench. The offender told her “if you move again, you’re in the dungeon”. He placed his hands inside her wrap dress and squeezed her breast really hard.

34. VG said she went back in the kitchen and vomited up the milk. She said she would not have milk again and never returned to the bench.

35. She did not tell anyone at the time in [suppressed]. She said she told her sister about 6 months later. VG said she didn’t tell anyone other than her sister in 1972 as she was too ashamed and too scared.

36. The offences were committed over three sequential days. Each offence was of short duration. I have taken into account the area of the body touched and the nature of the touching. I consider it elevates the offending that the victim was pregnant and known to be pregnant. She was aged 15. The third offence involved more force and was accompanied by a threat.

37. Having considered all of the factors operating to inform the seriousness of the individual offending I consider that each falls below the mid-range of offending, with count 3 slightly higher within this range.

38. Counts 4 - 7 relate to the victim EK. Counts 4, 5 and 7 are offences of rape contrary to s63 Crimes Act and count 6 is an offence of assault contrary to s61 Crimes Act. I found the offender guilty of all four counts.

39. EK was at [suppressed] from 3 February 1971 until 23 September 1972 and from 22 November 1972 until 30 May 1973. She was aged 15 at the time of admission. During this period she was transferred to Hay on three occasions - from 13 March to 24 August 1971; 11 March to 18 July 1972; and 1 December 1972 until 11 May 1973. In view of the amendments to the indictment, EK was either 15, 16 or 17 at the time of offending. When assessing seriousness I will rely on the upper age.

40. She said the offender was cruel to her and on many occasions he pulled her by the hair pulling out handfuls of hair or he would twist her arm behind her back. She said she was bashed by him causing injuries such as bruising to her face, lumps on the back of her head or black eyes. She never received any treatment for any injury. She said she was bashed in the dungeon, the isolation block and the holding cell.

41. EK described three occasions at three separate locations where she was sexually assaulted. She maintained the sequence of the three events although she was unable to place them in any period of detention.

42. Count 4:   She said the first incident occurred in the dungeon. She said she was disciplined after she refused to do work and the female officer supervising reported her. She said it was in the morning time. The offender attended. He grabbed her, twisted her arm behind her back, pulled her down the stairs and took her to the dungeon. She said the offender grabbed her top and tried to pull it. She swore at him. The offender told her to remove her clothes. He told her if she didn’t comply she would be bashed. He started hitting her in the face and bashed her head against the wall. She said she was crying. He placed his hand over her mouth. She complied and removed all her clothing. She sat on the floor. The offender removed his lower clothing. He bashed her head on the ground, and placed his hand over her mouth. He forcibly engaged in penile vaginal intercourse until he ejaculated. She was sore and bruised. She believed she stayed there for 72 hours.

43. Count 5:   The next occasion occurred after she was punished for jumping on the beds in the dormitory. She thought it was probably around 10pm. The offender attended and said if she couldn’t stop mucking around she could spend time in the isolation cell. The offender told her she would be held for 24 hours. She entered the cell and the offender said “you know the drill” and to take her clothes off. She was scared as she had been bashed on the last occasion. She said she removed her clothes. He removed his lower clothing and said “If you don’t do it I’ll bash you”. He placed his penis in her vagina until he ejaculated.

44. Counts 6 and 7:   EK said the third occasion was in the holding cell. She was not sure how or why she ended up in the holding cell. EK said the offender entered the cell in a rage. She said he grabbed her head and started bashing her around the room. She said he bashed her head against the wall and then threw her across the room. The offender said “I’ll teach you this time, [EK]”. He told her to remove her clothes. She told him she hated his guts. He removed his clothing and placed his penis in her vagina until he ejaculated. She had lumps on her head.

45. The offender returned an hour later and took her to see the psychiatrist. She did not tell him what happened. She was transferred to Hay that night.

46. There was general support for some part of the account given by EK. DH was at [suppressed] on two occasions. DH said on an occasion she was being punished under the covered walkway she saw the offender come out of the main building dragging EK, kicking and punching her whilst she was screaming and took her to the isolation block. She said EK was away for about 48 hours. When she returned she saw she had swelling and bruising to her face with her eye was almost closed.

47. VG also provided some support for EK. She said she knew EK at [suppressed]. She said she saw her with a black eye and EK told her she had been bashed in the dungeon.

48. EK said she told her husband, PK, soon after they met in 1987 what happened. She said she named the offender to him.

49. The victim was aged 15, 16 or 17 at the time of each offence. The offences occurred within the context of other forceful acts occurring on other occasions. The victim was also poorly treated based on her indigenous background. None of the rapes are described as being of long duration. The offender ejaculated on each occasion. The offender did not wear a condom and exposed EK to possible pregnancy. The offences occurred on three separate days over an unknown period of time.

50. Count 4 involved the victim being physically manhandled, threatened with violence, physically assaulted and experiencing resultant discomfort.

51. Count 5 involved a threat of violence.

52. Count 6 was a serious assault involving the victim’s head being bashed against a wall and her being thrown across the room.

53. Count 7 occurred immediately after this act of violence.

54. Having considered all of the factors operating to inform the seriousness of the individual offending I consider that count 5 falls at the middle of the range, count 7 just above the middle of the range and counts 4 and 6 well above the middle of the range for each offence category.

55. Counts 8 - 12 relate to the victim LT. Counts 8, 9, 10 and 12 are offences of indecent assault contrary to s76 Crimes Act and count 11 is an offence of assault contrary to s61 Crimes Act. The five counts concerning LT relate to four separate incidents. I found the offender guilty of all 5 counts.

56. LT was at [suppressed] from 10 September 1971 until 21 March 1972. She was aged 15 at the time of admission but 16 at the time of offending.

57. She said whilst she was detained she attended sick bay on more than one occasion. Exhibit U reflects that she was in the hospital block on two occasions; for 5 days from 22 November to 26 November 1971 and for 3 days from 7 December to 9 December 1971.

58. Count 8:   She said the first time was after her knees were injured from a punishment entailing scrubbing floors. She said she was in considerable pain. She was wearing a nightie. She said she was locked in the sick bay when the nurse departed. She said the offender had a key. She said the offender entered and asked ‘how is the patient today?’ or similar. He commenced rubbing her knee, moved his hand up her thigh, placed his hand inside her underwear and touched her vagina. She told him to stop and tried to push his hand away. The offender told her to not say anything to anyone as there would be consequences if she did.

59. Count 9:   LT said the offender returned the following day at the same time. He said “things didn’t go too good yesterday, did they?’ She asked why he was doing this to her. He put his fingers inside her underwear and rubbed her vagina. She tried unsuccessfully to kick him away. She asked him to stop. The offender said “you’re a whore, like all the others in here”.

60. Counts 10 and 11:   The next incident was after she was standing on the covered way serving a punishment. She bent down to assist another girl who was fitting. The offender pulled her by the hair and asked what she was doing. He accused her of trying to fight. He marched her to his office. The offender closed the door. He spoke into her ear telling her she was nothing but trouble. He was yelling it. He pressed his body against her back and she felt he had an erection.

61. He walked to his desk and commenced rubbing his crotch. He yelled “youse are all whores”. He then approached and stood to her side, pushing, and she felt he had an erection. She was crying. She screamed that she didn’t do anything. The offender grabbed the shoulder of her dress and flung her into the wall causing her shoulder and head to hit the wall.

62. Count 12:   The next occasion LT said she couldn’t stop laughing and the offender reprimanded her. He grabbed her by her shoulder and took her to the holding room. The offender mentioned contraband and pushed her against the wall and directed her to put her hands out to the side. The offender commenced touching her and touched her breasts and then lifted her dress. He placed his hand inside her underwear and squeezed her vagina. She told him to stop. He said it was where contraband was hidden. LT said he squeezed for minutes. He told her not to tell or there would be consequences.

63. LT did not tell anyone. When she was to be released the offender told her she would be back, and when she came back she would have to answer for it if she said anything. The first person she provided details to was Detective Paul in her statement.

28. The offences were perpetrated over four separate days, and likely over several months. She was aged 16. Having considered all of the factors operating to inform the seriousness of the individual offending I consider that counts 8 and 9 each of which involved genital touching of short duration fall above the mid-range of offending. Count 10 entailed the offender rubbing himself against the victim with an erection whilst each remained clothed. Count 11 occurred in the context of this offending. The offender flung the victim against a wall causing her head to hit a wall. Each offence falls just below mid-range. Count 11 involved external touching of the genitals causing pain and accompanied by a threat. This offence falls at the mid-range.

29. Counts 13 - 22 relate to the victim CL.

30. Counts 17 and 21 are offences of buggery contrary to s79 Crimes Act; counts 14, 15, 16, 19 and 22 are offences of indecent assault contrary to s76 Crimes Act; count 20 is an offence of assault occasioning actual bodily harm contrary to s59 Crimes Act; and counts 13 and 18 are offences of assault contrary to s61 Crimes Act.

31. CL gave evidence of an occasion relevant to count 17 but indicated that there was no penetration. The offender was found not guilty of count 17.

32. I found the offender not guilty on counts 13, 14, 15, 16, 18 and 19.

33. I found the offender guilty of counts 20, 21 and 22.

34. CL was at [suppressed] from 6 January 1972 until 19 September 1972. She was aged 16 at the time of admission and 17 on discharge. I shall sentence on each offence based on her being aged 17.

35. Counts 20, 21 and 22:   CL said she remembered an occasion the offender penetrated her anus with his penis. He also hit her to the face and chipped her tooth. She was punched to the stomach, pushed up against a wall and had her hair pulled. She was asked to undress. She was on her hands and knees. She assumed the offender removed his lower clothing to his knees. He was on his knees behind her. He slapped her on the buttocks. He ejaculated inside her anus. He then made her fellate him to remove the faeces from his penis.

36. CL did not tell anyone whilst she was at [suppressed]. She told a girl in her dormitory about the offender and she was told to not talk about it. She said she feared being sent to the dungeon or being transferred to Hay. The offender had threatened to send her there.

37. She did not tell anyone when she was released.

38. All three offences were part of the one incident. The assault occasioning actual bodily harm involved various blows to the face and stomach. The blow to the face resulted in a chipped tooth. The offender ejaculated during the act of anal penetration and slapped the victim’s buttocks. The act of fellatio supporting the indecent assault was particularly degrading and traumatic. The victim was required to remove her own faeces from the offender’s penis. The sexual offences occurred immediately after the victim had been assaulted and therefore each occurs within the background of violence. She was aged 17. Having considered all of the factors operating to inform the seriousness of the individual offending I consider that both counts 20 and 21 fall within the mid-range of offending for the offence type. Count 22 is well above the mid-range.

39. Count 24 relates to the victim CC and is an offence of indecent assault contrary to s76 Crimes Act. I found the offender guilty of this offence.

40. CC was at [suppressed] from 24 January 1972 until 28 August 1972. She was aged 16 at the time of admission and discharge.

41. Count 24:   CC described a sole incident. CC recalled being taken to hospital over a bladder/kidney complaint. She said she was taken for surgery and went for a follow up appointment about a month later. She was taken to documents that showed she went for three follow up appointments. CC said on the occasion of the follow up the offender told her to shower. She did not know where she was going that day. She went to shower. She was dressing when she bent over. She felt a hand on her back and felt a finger enter her vagina. She turned around and saw the offender. She had not realised he was in the room. She started to cry. The offender told her to not be a cry baby.

42. She did not complain. She said when she complained about something else she had been called a liar.

43. The offence was of short duration. There was no force and the victim was taken by surprise. It was the sole offence upon her. She was aged 16.

44. Having considered all of the factors operating to inform the seriousness of the individual offence I consider that it falls just above the mid-range of offending.

45. Counts 35 - 39 relate to the victim DW. Count 39 is an offence of buggery contrary to s79 Crimes Act and counts 35 - 38 are offences of indecent assault on a male contrary to s81 Crimes Act. I found the offender guilty of all 5 counts.

46. DW was at Daruk from 27 August 1973 until about 20 February 1974. He was aged 14 at the time of admission and discharge.

47. The offender was his House Master and a Deputy Superintendent.

48. Counts 35 and 36:   DW went on a camp in the Christmas holidays he believed in early to mid-January. He described the offender asking him to sit in the truck with him and the driver. The other boys were transported in a bus. They then canoed part of the way. He was seated in front of the offender with two other boys in the canoe. He felt uncomfortable as the offender would pull him back towards his crotch as DW paddled. DW said during the night he slept in a tent with others. He woke to feel his genitals being fondled [count 35]. He said the offender tugged his leg and gestured him outside. At a location between the tent and the river bank the offender directed him to get on his knees. He did so as he said you did not argue with the offender. The offender held the back of DW’s head pulled out his penis and directed DW to put it in his mouth. This occurred for a few minutes until the offender ejaculated in his mouth [count 36]. The offender then told him to go back to bed.

49. Count 37:   The following morning DW tried to not interact with activities. The offender told DW to accompany him. The offender said to the staff “He’s been a bit upset, I’m going to take him for a walk and see what’s the matter with him”. They walked to the top of a hill. The offender directed him to get on his knees. He said “Get on your knees, you know the deal”. He pulled out his penis and put it in DW’s mouth. The offender was more violent with holding the back of his head. The act concluded when the offender ejaculated. When they returned to the camp site the offender directed him to bed.

50. Count 38:   After the camp there was an incident when DW challenged a direction of a staff member. He was placed in solitary. The following morning the offender let him out of the locked cell and told him to redress. As DW went to put his shoes on the offender told him to get on his knees, and mentioned about DW knowing the deal. There was an act of fellatio similar to the other two that also ended with the offender ejaculating in his mouth.

51. DW said he was taken to the offender’s house on site by the offender. He said the house was a couple of hundred metres away. He met the offender’s wife and child. He was asked to assist the offender’s wife. He went there 2 to 4 times.

52. Count 39:   DW was taken out by the offender. It was a Saturday. The offender told him it would get DW off ‘crow shooting’. He accompanied the offender, his wife and child to a house he believed was the offender’s private residence.

53. DW said when they arrived the offender told his wife to go and get some food. The offender told him to “come over here”. The offender lay down on the floor and pulled his lower clothing down. He told DW to remove his pants and to straddle him and to sit on his belly button. The offender directed him to lean forward and then to move backwards. He felt the offender rub his penis around DW’s anus. DW tensed and the offender could not penetrate him. The offender told him to relax. The offender then anally penetrated him for 4 or 5 minutes. It caused excruciating pain. DW started to defecate. They heard Mrs Valentine return. The offender told him to go in the garden and to clean himself. He noticed there was blood and faeces.

54. DW said he did not tell anyone in Daruk. He said the offender was a superintendent and he would have been crucified and not believed if he complained about an officer.

55. DW told his father soon after he was released that the offender had raped him.

56. Within weeks of release the offender attended DW’s house. The offender left an orange tree outside with a card that read “I hope you grow like this tree and both flourish”. This, together with the fact the offender kept a photograph of DW taken at Daruk, suggests that the offender felt a fondness for DW.

57. DW said in what he thought was about 2000 he told his sister. He told her he had been sodomised and raped in Daruk by the offender.

58. DW said he did not see the offender again and believed him dead until he saw the 60 minutes program in 2015 or 2016. He told his wife that the “bastard on TV” had raped him. He named the offender and mentioned Daruk.

59. DW was aged 14 at the time of offending. Count 35 involved genital fondling of the victim. Counts 36, 37 and 38 each were acts of fellatio concluding with the offender ejaculating. Count 39 was an act of anal penetration that caused intense pain, resulted in an injury causing bleeding and also caused the victim to defecate. Having considered all of the factors operating to inform the seriousness of the individual offending I consider that count 35 falls below mid-range, counts 36, 37, and 38 each fall above the mid-range of offending and count 39 well above the mid-range.

Penalty

96. Each offence is serious as reflected by the elements and the penalties.

97. Counts 4, 5 and 7 are all offences of rape contrary to s.63 Crimes Act, 1900. The maximum penalty is life imprisonment.

98. Counts 21 and 39 are offences of buggery. These offences are contrary to s.79 Crimes Act, 1900 and have a maximum penalty of 14 years imprisonment.

99. Counts 35-38 are offences of indecent assault on a male. These offences are contrary to s.81 Crimes Act, 1900 and have a maximum penalty of 5 years imprisonment.

100. Counts 8-10, 12, 22 and 24 are offences of indecent assault on a female contrary to s.76 Crimes Act, 1900 and have a maximum penalty of 3 years imprisonment. Counts 1-3 are offences of indecent assault on a female contrary to s.76 Crimes Act, 1900 but as the victim was aged under 16 have a maximum penalty of 5 years imprisonment.

101. Count 20 is an offence of assault occasioning actual bodily harm contrary to s.59 Crimes Act, 1900 and has a maximum penalty of 5 years imprisonment.

102. Counts 6 and 11 are offences of assault contrary to s.61 Crimes Act, 1900 and have a maximum penalty of 2 years imprisonment.

Remorse

103. The offender chose to defend these matters at trial as was his right. I do not use that adverse to him but it reflects an absence of remorse. Since verdict there has been no expression of remorse. The offender has continued to protest his innocence.

Health

104. The offender was aged in his early 30’s at the time of offending and is now aged 78.

105. Medical reports and documents were tendered on behalf of the offender. The offender has a number of health issues, as was evident and supported by evidence during the course of the trial.

106. Dr Wayne Stafford, Consultant Cardiologist, has been the offender’s cardiologist since 1997. The offender had his first pacemaker implanted in 1997 and upgraded in 2002, 2010 and again in 2013. Valve surgery was performed in 2016. Dr Stafford referred to the offender’s deterioration post-surgery. His current cardiomyopathy, tachycardia, kidney disease and others medical issues are reported. Dr Stafford opined that the offender would require ongoing medical supervision in custody, and proposed the recommended period for cardiac review. The importance of access to his medication is stated. I well accept this view. It was for that reason, to ensure the offender corralled all relevant medical reports to accompany him into detention, that he remained on bail after conviction.

107. The prevalence of historical offences and aged offenders entering custody has also become more common. The offender is an elderly man with medical issues that should be capable of being met by Justice Health. The Crown tendered documents covering the medical services and facilities provided by Justice Health, including those for inmates requiring aged care. Additionally tendered is the correspondence between the offender’s solicitor and Ms Giulia Rudge, Manager of the Court Report Coordination Unit of Justice Health. Ms Rudge has indicated the pathway for processing and triaging needs of inmates to determine accommodation in a unit capable of addressing his care needs. This includes a referral to aged care if considered appropriate.

108. A 1-3 year life expectancy is estimated by Dr Stafford although he allows for a longer period.

109. Dr Tony Wild is the offender’s treating psychiatrist. He has been treating the offender for over 20 years for a diagnosed adjustment disorder with depressed mood and anxiety. It is stated this is connected to the stress of accusations although I observe there must have been some earlier trigger as accusations surfaced only in the last 5 years. Some other historical stressors are noted in Dr Reutens’ report.

110. Dr Sharon Reutens, Consultant Psychiatrist, prepared a report for Court. She has not been involved in his treatment. She spoke with both the offender and his wife. She recorded the offender’s stress and concern about entering custody. Dr Reutens wrote of the offender’s father being absent in his first years of life during the war and then his mother dying when he was aged 8. He was raised by his father and step-mother. He had siblings and half siblings. He was educated until 15 when he left school to commence an apprenticeship to assist to support his family. The offender emigrated from the UK at about 21 or 22 with his brother joining him 2 years later. He returned to complete his education and then completed tertiary study at the UNE. He was completing this education during the offence period whilst employed by Child Welfare. He married his wife Maris in the late 1960’s. He retired medically unfit and explored private enterprise employment. He has 5 children and 9 grandchildren.

111. Dr Reutens conducted cognition screening. She said the results are suggestive of cognitive impairment but further testing would be necessary to explore this possibility. She referred to Mrs Valentine indicating that there were occasions the offender needed to be prompted to undertake activities. The offender commented upon his reliance upon his wife. She allowed for anxiety and depression operating as contributing factors. She added that the result could have multifactorial causes. She diagnosed a Persistent Depressive Disorder which she opined is likely to be exacerbated by incarceration.

112. Dr Reutens addressed the difficulty likely to be experienced by the offender if he was required to be housed on an upper floor or to climb into an upper bed. As indicated by Ms Rudge, the issue of appropriate classification and housing will be assessed upon his entry into custody by qualified staff. They will be aware of his various medical issues, medical needs and the importance of complying with their statutory obligations to promote his well-being.

Conditions in custody

113. There is no compelling evidence of any likely onerous conditions in custody based upon the offence category. Dr Reutens stated that the offender would be vulnerable in the main gaol based on age and the charges, and that even on protection he may be stood over to access his prescribed psychotropic drugs. She also stated he may have limited peer support. I accept that the offender’s classification will be influenced by the nature of the offending being committed upon children. Unfortunately, this category of offender is not unknown within the custody setting. Protection classification does not of itself indicate any more onerous conditions. He is likely to be accommodated with offenders sentenced for like offences which minimises the risk of ramifications.

114. I decline to accept that the conditions in custody will be any more onerous based upon the offence based classification. I accept that the offender’s age and health issues make his life generally more difficult and this difficulty will not subside as he enters custody. I will allow for this greater than usual difficulty in supporting a finding of special circumstances.

115. I do not consider that the offender’s exposure to publicity amounts to extra-curial punishment.

Character

116. The offender has no criminal history. I am mindful that about 50 years ago he obtained his employment and position of authority by virtue of the absence of antecedents. The authors of references attest to his good character. I accept he is entitled to draw on his good character and otherwise exemplary conduct over 75 of his 78 years and is therefore entitled to some leniency.

Sentencing considerations

117. The offender chose to exploit a position of power to commit these offences. There is no suggestion that there will be further opportunity to access other persons in such circumstances. The most recent offences occurred more than 45 years ago. The offender no longer has access to detained and vulnerable children. He has significant health issues which render him unlikely to be able to subdue a victim. Given the absence of antecedents, and the limited scope to reoffend I consider the risk of re-offending to be inconsequential. This determination, and the apparent absence of continued offending, suggest that rehabilitation has occurred, despite the non-acceptance of the offending. It follows that personal deterrence has no role to play.

118. The years of offending encapsulated by these offences indicates a relatively lengthy period of sexual offending. All offences were committed in his work place where his position of power over detained inmates was exploited. The offending presented is referred to by his children and friends as being inconsistent with the person they have known for decades. Various children attended parts of the trial. With full awareness of the proven conduct, his five children have written letters of continued support. Each child conveys that the offender was and is loving, supportive and kind. The offender’s family is undoubtedly a close and warm family, with the offender comforted by his Christian faith. There is comment about honesty, strong moral fibre and integrity. The combination of these references portray a man of warmth, a believer in education and of nurturing and supporting each of his children. As each attests, the person they know is not the person who committed the offences. His daughter in law mirrors similar sentiment. Jennifer Newell has been a friend of the offender since 1967. She has written of the offender’s sense of family and his concern for others. Annemarie Reeve has been a friend through her childhood friendship with the offender’s wife, Maris. She reiterates similar observations. Keith Murray wrote of knowing the offender from when he was the Education officer and resided with his family beside the offender at Daruk. Mr Murray addressed the positive contribution the offender made to Daruk and remarked on the offender always standing up for what was right, possessing impeccable integrity and being very well liked by the boys at Daruk. Brenda and John Cross met the offender in the last 20 years. They remark that the offender has always conducted himself in a quiet gentlemanly way and inspiring young people to aspire to the best of their ability.

119. It is obvious that the man known to others was a changed man from the man who operated in a cruel and dismissive way to the detainees under his supervision. His Christian spirit and interest in inspiring the young was absent during the period of offending.

117. The proven conduct was not a momentary lapse. It covers approximately a three year period. Those who were assaulted were vulnerable because they were detained and unable to remove themselves from the place of detention or from the staff, in particular the offender who held one of the most senior positions. The offender on occasion called victims ‘whores’. This reflects what he thought of at least some of the detainees.

118. It is not at all surprising that the offender presented a different self to his family and friends. The overwhelming impact of this character evidence is that the offender was capable of being decent and pleasant. He acted almost exclusively consistent with this presentation during his evidence. He conveyed a presentation of a kindly affable elderly man. On occasion this veneer cracked. I will take this evidence into account as confirmatory of his rehabilitation. It demonstrates that the offender was not entirely bad, or unable to conduct himself with decency and restraint.

119. He chose to offend against children under his care. He treated the victims with disdain. This enhances the tragedy of his wilful succumbing to violence and sexual depravity.

120. General deterrence and denunciation are principles of sentencing which are relevant to cases involving child sexual abuse. Sexual offending upon children, even those approaching adulthood, requires appropriate sentences to provide for general deterrence to serve a meaningful role. The actions of those who sexually abuse children intentionally and repeatedly should not and will not be tolerated. Delay should not ameliorate this requirement. The offender relies upon comment by Howie J in PH v R [2009] NSWCCA161. Other offenders should not regard the not unusual delay before reporting or detection to work in their favour. This is the message that needs to be conveyed and to support the principle of general deterrence.

121. It is accepted that custodial sentences of some considerable length are required.

122. I am required to adopt differing approaches to sentencing patterns. These are all historical offences. Historical offences are guided by consideration of sentencing patterns, as far as they may be divined, to have existed at the time. By virtue of legislative amendments, this does not apply to counts 1-3 or counts 35-39 being offences involving victims under the age of 16. These offences are informed by current sentencing patterns.

123. In assessing these historical sentencing practices there is no compelling basis to determine that sentences for offences of this seriousness attracted markedly dissimilar sentences, guided and adjusted by the different and lower maximum penalties then in force for some offences. I accept that in the period of the original offending sentences customarily attracted lower non-parole periods as a ratio of the term. Various appellate decisions have considered the observed pattern of lower non-parole periods imposed. I propose to impose an aggregate sentence and the mixed nature of historical and current pattern of sentences will impact on the overall ratio.

124. I am mindful of the requirement to comply with the principle of totality in ensuring that appropriate individual sentences are imposed but also that the overall sentence is appropriate. Some degree of accumulation is necessary to address the offending upon separate victims and on separate occasions but this need be moderated to comply with sentencing principles. Given the number of offences I consider it appropriate to impose an aggregate sentence.

125. I am particularly mindful of the offender’s age and health. The sentence imposed may well result in the offender dying in custody. Based on the necessity to accumulate indicative sentences, and the offender’s age and health issues, I make a finding of special circumstances.

126. The offender is convicted.

127. The indicative sentences are:

Count 1, indecent assault of VG:	2 years imprisonment
Count 2, indecent assault of VG:	2 years imprisonment
Count 3, indecent assault of VG:	2 years 3 months imprisonment
Count 4, rape of EK:	12 years imprisonment
Count 5, rape of EK:	8 years imprisonment
Count 6, assault of EK:	1 year imprisonment
Count 7, rape of EK:	9 years imprisonment
Count 8, indecent assault of LT:	2 years imprisonment
Count 9, indecent assault of LT:	2 years imprisonment
Count 10, indecent assault of LT:	1 year 6 months imprisonment
Count 11, assault of LT:	8 months imprisonment
Count 12, indecent assault of LT:	1 year 9 months imprisonment
Count 20, AOABH of CL:	1 year 7 months imprisonment
Count 21, buggery upon CL:	8 years imprisonment
Count 22, indecent assault of CL:	2 years 9 months imprisonment
Count 24, indecent assault of CC:	1 year 9 months imprisonment
Count 35, indecent assault of DW:	2 years imprisonment
Count 36, indecent assault of DW:	3 years imprisonment
Count 37, indecent assault of DW:	3 years imprisonment
Count 38, indecent assault of DW:	3 years 2 months imprisonment
Count 39: buggery upon DW:	9 years imprisonment

131. Mr Valentine, you are sentenced to an aggregate sentence of 22 years imprisonment with a non–parole period of 13 years to date from today, 24 May 2019. This sentence will expire on 23 May 2041. You will be eligible for parole on 23 May 2032. This variation to the statutory ratio to 59% gives effect to my finding of special circumstances. No lesser non-parole period would address the seriousness of the offending.

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Decision last updated: 24 May 2019